Washington, November 26, 2002
-- The Home Recording Rights Coalition (HRRC) today expressed concern over confiscation of student computers at the U.S. Naval Academy and over published reports that students could face expulsion for having downloaded content onto computer hard drives.
"Unfortunately, this is the type of Orwellian response that stems from the overreaching efforts of some members of the content community who seek to demonize young people who share copyrighted content for non-commercial personal use," HRRC Chairman Gary Shapiro said. "Unless there are facts in this case of which we simply are unaware, the Naval Academy’s response to written requests from the Recording Industry Association of American (RIAA) and the Motion Picture Association of American (MPAA) to crack down on campus piracy seems unusually severe. As we have said before, not every download constitutes theft.
"The entire academic community has an obligation to protect student freedoms and, in this case, to acknowledge the crucial distinction between illegal infringing and authorized fair use. We can all agree that downloading and recording copyrighted material without authorization for commercial use is illegal. But using this content for one’s own personal use likely falls under the protection of ’fair use.’ All universities and other organizations that seek to limit downloading must recognize the distinction.
"Restricting or punishing those students who are the most attracted to technology - those who likely are among the best and brightest - could inflict further damage by discouraging all students who may first be exposed to new and innovative technology at the collegiate level from using or even learning about technology’s benefits."
Shapiro said that the Academy’s action underscores the critical need to develop a balanced, common sense approach to legitimate concerns about transmission of copyrighted content over the Internet that respects copyright while preserving established fair use rights. He said that HRRC would continue to work closely with colleagues in the content community and with the Congress to establish such a solution.
Earlier this year, the U.S. Department of Justice (DOJ) indicated that it might be preparing to bring criminal cases against ordinary consumers who engage in file "swapping" over the Internet. In a public statement a DOJ official indicated that such criminal copyright infringement cases may be filed against individual consumers under the "NET Act" (17 U.S.C. §§ 101, 506, 507; 18 U.S.C. § 2319), a law passed in 1997 to make "hacking" by individuals a criminal act, even when not done for profit.
HRRC said at the time, "Ever since the Betamax case was filed, it has been vital to maintain the distinction between consumers engaging in private, noncommercial use of copyrighted material, and large-scale pirates. Sharing over the Internet has encouraged some content owners to try to obliterate this distinction. But every time the entertainment industry or the government has accused average consumers of being copyright criminals, the accusers have had to back off, and with good reason."
HRRC always has maintained that even where particular consumer practices may be controversial, private, noncommercial home recording practices should not be lumped in with piracy. For example, in a congressional hearing on "Internet Redistribution" earlier this year, U.S. Representative Ed Markey (D-MA) noted that he has a fair use right to make a home recording of a copyrighted broadcast and share it with a relative over the Internet. The suggested DOJ interpretation of the NET Act could classify this as not only a copyright infringement, but also as a crime.
According to reports of an Aspen, Colorado "summit" discussion sponsored by the Progress and Freedom Foundation (PFF), Deputy Assistant Attorney General John Malcolm was quoted as saying "stealing is stealing is stealing," and that a public message must be sent to consumers that "swapping" such programs over the Internet is a criminal offense that can result in lengthy prison terms under the NET Act. HRRC believes, to the contrary, that the NET Act was never meant to upset the balance under the Copyright law between the rights of copyright owners and the consuming public. Any such legislation, if offered today, would be highly unpopular.
HRRC has emphasized key points that should discourage any consideration of applying the NET Act to ordinary, non-hacker, consumers:
1. Fair use rights are guaranteed to consumers by statute, and applied judicially on a case by case basis. This means that, while some consumer practices ultimately could be adjudicated as either fair use or infringement, there is scant basis for challenging them as criminal.
2. Time after time, practices of individuals that were initially equated with "piracy" or "theft" have been shown to be neutral or beneficial to copyright owners, and have either been tolerated or accepted as fair use.
3. The NET Act’s requirement of a total retail value of $1,000 per infringement should be taken seriously as a barrier to bringing cases against ordinary consumers. This law should not be re-interpreted, after the fact, as a criminal enforcement vehicle against consumer-to-consumer recording and "swapping" practices.
HRRC opposes piracy, including use of the Internet for unauthorized competition with rights owners. Shapiro has noted that Attorney General Ashcroft, as Missouri Attorney General, filed a crucial pro-consumer amicus curiae brief in the Betamax case on behalf of twelve states, and as a Senator was a leading spokesman for consumer rights in the debate over the 1998 Digital Millennium Copyright Act ("DMCA").
The Home Recording Rights Coalition, founded in 1981, is a leading advocacy group for consumers’ rights to use home electronics products for private, non-commercial purposes. The members of HRRC include consumers, retailers, manufacturers and professional servicers of consumer electronics products. Further information on this and related issues can be found on the HRRC website, www.hrrc.org